Reply Brief — Harris v. Ariz. Indenpendent Redistricting Comm'n, 135 S. Ct. 2926 (2015) (No. 14-232)

No. 14-232

IN THE

Supreme Court of the United States

WESLEY W. HARRIS, et al.,

Appellants,

v.

ARIZONA INDEPENDENT REDISTRICTING

COMMISSION, et al.,

Appellees.

On APPEAL FROM THE

Untrep Srates District Court or ARIZONA

—_

—

OPPOSITION TO MOTION TO

DISMISS OR AFFIRM

-———- — -

Mark F. (Tuor) Hearne, II

STEPHEN G. LARSON

Counsel of Record Rosert C. O’BrIEN

SrepHEen S. Davis Steven A. HASKINS

ARENT Fox LLP ARENT Fox LLP

1717 K Street, NW 555 West Fifth Street,

Washington, D.C. 20036 48th Floor

(202) 857-6000 Los Angeles, CA 90013

thor@arentfox.com (213) 629-7400

Davip J. CANTELME MicnHaet T. Lisurp!

CANTELME & Brown PLC SNELL & WILMER LLP

3003 N. Central Avenue One Arizona Center

Suite 600 400 E. Van Buren Street

Phoenix, AZ 85012 Phoenix, AZ 85004

(602) 200-0104 (602) 382-6000

(Additional Counsel listed on signature page)

December 2, 2014

— oo

COUNSEL PRESS

(800) 274-8321 » (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS. i

TABLE OF CITED AUTHORITIES ii

INTRODUCTION a

I. Believing the Justice Department would

more likely preclear its redistricting scheme

does not justify unequal legislative districts

that violate the Equal! Protection Clause’s

guarantee of one-person, one-vote.

or

II. The unequal districts were not the result

of traditional, race-neutral districting

criteria. 8

Il. The Equal Protection Clause prohibits

deviations from population equality to

accomplish an illegitimate objective. .10

CONCLUSION 13

i

TABLE OF CITED AUTHORITIES

Page

CASES

Abrams v. Johnson,

521 U.S. 74 (1997). 5

Ariz. State Legislature v.

Ariz. Indep. Redistricting Comm'n,

No. 13-1314 (Order of October 2, 2014)... ..1,2, 18

Bush v. Vera,

517 U.S. 952 (1996) .10

Gaffney v. Cummings,

412 U.S. 735 (1973). | ae

Growe v. Emison,

507 U.S. 25 (1993). 13

Harper v. Va. Dep’t of Taxation,

509 U.S. 86 (1993). 6

Karcher v. Daggett,

462 U.S. 725 (1983). 9

Kirkpatrick v. Preisler,

394 U.S. 526 (1969). 9

Larios v. Coz,

300 F. Supp. 2d 1320 (N.D. Ga. 2004) 12

222

Cited Authorities

Page

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) .5, 9, 11, 13

McCain v. Lybrand,

465 U.S. 236 (1984). 6

Miller v. Johnson,

515 U.S. 900 (1995). . 8, 8

Reynolds v. Sims,

377 U.S. 533 (1964). 1,4

Roman v. Sincock,

377 U.S. 695 (1964). a

Shelby County v. Holder,

133 S.Ct. 2612 (2013) passim

South Carolina v. Katzenbach,

383 U.S. 301 (1966). 7,8

United States v. Bd. of Comm’rs of Sheffield, Ala.,

435 U.S. 110 (1977). .6, 7

Vieth v. Jubelirer,

541 U.S. 267 (2004). 11,12

STATUTES AND OTHER AUTHORITIES

Voting Rights Act, §4 passim

Voting Rights Act, §5 passim

]

INTRODUCTION

This is the second of two cases arising from the

Arizona Independent Redistricting Commission’s (IRC)

redrawing Arizona’s congressional and state house

and senate districts. This Court has already noted

jurisdiction reaching the merits of the first case. Ariz.

State Legislature v. Ariz. Indep. Redistricting Comm'n,

No. 13-1314 (Order of October 2, 2014).

Arizona State Legislature asks whether it is

constitutional under the Elections Clause to divest

Arizona’s state legislature of any role apportioning

congressional districts and to vest redistricting in an

independent commission not accountable to the legislature.

This case asks whether the IRC’s reapportionment

of Arizona’s state legislature is constitutional when the

IRC drew legislative districts that violate this Court’s

one-person, one-vote principle in Reynolds v. Sims, 377

U.S. 533, 577 (1964), and Roman v. Sincock, 377 U.S. 695,

710 (1964). The IRC was capable of creating legislative

districts with equal population, as it did when it created

congressional districts with no population deviation.'

Yet, when it came to state legislative districts, the IRC

intentionally and systematically over-populated some

Republican districts and under-populated Democrat

1. See IRC website, 2012 congressional district population

data table at: <http://azredistricting.org/Maps/Final-Maps/

Congressional/Reports/Final%20Congressional%20Districts%20

-%20Population®20Data%20Table.pdf> (last visited November

29, 2014); see also id., 2001 congressional district population data

table at: <http://azredistricting.org/2001/Final/congfinal.pdf>

(last visited November 29, 2014).

2

districts. App. 209a. The effect of the IRC’s plan was to

inflate the influence of Democrat voters and dilute the

influence of Republican voters.

The district court found the IRC did this for partisan

advantage and because the IRC hoped the Justice

Department would more likely preclear this plan under

the Voting Rights Act. App. 36a, 107a.

Proponents of the measure creating the IRC claimed

divesting Arizona’s legislature from the redistricting

process and vesting sole reapportionment authority in the

IRC would remove partisan interests from the redistricting

process. See Op. Br. of Ariz. State Legislature, pp. 2-4 and

authorities cited therein.

This case demonstrates the exact opposite occurred.

By delegating redistricting to the IRC—a five-member

body without any political accountability—Arizona’s

legislative districts were intentionally drawn to achieve

partisan advantage for the Democrat party. Out of thirty

districts, “the 18 with population deviation greater than

+2% from ideal population correlate perfectly with

Democrat Party advantage.” App. 108a (emphasis added).

The total population deviation (a measure of how unequal

these district are) is close to 9%. This is an almost three

times greater deviation than Arizona's prior legislative

districts.’

2. See IRC website, adopted legislative redistricting plan

of April 12, 2004 showing total deviation of 3.12%, at: <http://

azredistricting.org/2001/2004newlegtests/batch7/A pril%2012%20

Adopted%20stats.pdf> (last visited Nov. 29, 2014).

3

The IRC’s unequal legislative districts deny equal

weight to more than 70,000 Arizona citizens’ votes. App.

112a-113a; see also App. 209a; Jurisdictional Statement,

pp. 8-10. As the legislative map and charts in Judge Wake’s

dissent demonstrate, the IRC adopted an unequally-

apportioned scheme to redistrict Arizona’s legislature

for partisan benefit.

The IRC does not dispute the almost 9% population

deviation in these unequal districts. Instead, it responds by

claiming this is a “minor” or “insignificant” deviation from

the one-person, one-vote standard the IRC was required

to make to obtain Justice Department preclearance. The

IRC asks this Court to uphold its intentionally unequal

legislative districts even though this Court declared

the formula upon which preclearance is triggered to be

unconstitutional. See Shelby County v. Holder, 133 S.Ct.

2612 (2013).

The problem is that, even if true, and even if §5 of the

Voting Rights Act were still enforceable, obtaining Justice

Department preclearance does not justify violating the

one-person, one-vote constitutional mandate. See Miller v.

Johnson, 515 U.S. 900, 927 (1995). The Voting Rights Act

does not justify drawing systemically-unequal districts

as the IRC did. As Judge Wake noted, even if one once

believed obtaining Justice Department preclearance was

a legitimate reason to violate the one-person, one-vote

principle it no longer justified unequal districts after

Shelby County. App. 124a-128a.

Finally, the IRC asks this Court to uphold its unequal

legislative districts until the next reapportionment almost

a decade from now. Doing so means more than 70,000

4

Arizona citizens are denied an equally-weighted vote

for their state representative and state senator in every

election over the next decade. If the one-person, one-vote

principle means anything, it means we can do better than

what the IRC did. It means the IRC’s unequal legislative

districts, established for the purpose of achieving, at least

in part, a partisan advantage, are not constitutional and

must be redrawn to conform to the one-person, one-vote

principle.

The I1RC’s reapportionment systematically under-

populated Arizona’s majority-minority districts. The

ten most under-populated districts also have the highest

minority percentages. The IRC admits that this was

intentional. But neither racial, ethnic, nor partisan

motivations justify the IRC’s unequal districts.

Even if the IRC thought systematic inequality was

necessary to win the Justice Department’s favor, this does

not change the fundamental principle that “the Equal

Protection Clause requires that the seats in both houses

of a bicameral state legislature must be apportioned on

a population basis.” Reynolds, 377 U.S. at 568. And, the

IRC’s misguided effort to obtain preclearance by under-

populating minority districts unquestionably implicates

racial and ethnic concerns and, thereby, raises “serious

constitutional questions.”* League of United Latin Am.

Citizens v. Perry, 548 U.S. 399, 446 (2006); see also App.

3la—34a.

3. See Abrams v. Johnson, 521 U.S. 74, 91 (1997).

5

I. Believing the Justice Department would more likely

preclear its redistricting scheme does not justify

unequal legislative districts that violate the Equal

Protection Clause’s guarantee of one-person, one-

vote.

The IRC defends its unequal districts by arguing $5

required the IRC to draw these unequal districts. Mot. to

Affirm, pp. 21-22. This is wrong for three reasons. First,

Congress cannot compel by statute a state to violate the

Fourteenth Amendment guarantee of Equal Protection.

Thus, §5, even if it applies, does not compel unequal

districts. Second, §5 is no longer a justification because

this Court declared the coverage formula that brought

Arizona within §5 unconstitutional. Shelby County, 133

S.Ct. at 2631. Consequently the IRC’s desire to comply

with §5 is not a legitimate reason to violate the one-person,

one-vote principle. Third, preclearance did not require

the IRC to draw unequal districts. See Jurisdictional

Statement, p. 33-36, especially as to District 8.

The IRC says Shelby County is not relevant because

Shelby County was decided after it finished redistricting

Arizona’s state legislative districts. Mot. to Affirm, pp. 24-

27. The IRC argues Shelby County does not retroactively

negate its supposed reliance on §5. But see Harper v.

Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993) (“When

this Court applies a rule of federal law to the parties

before it, that rule is the controlling interpretation of

federal law and must be given full retroactive effect in

all cases still open on direct review and as to all events,

regardless of whether such events predate or postdate

our announcement of the rule.”).

6

The IRC fails to appreciate that Shelby County changed

Arizona’s relationship with the federal government. After

Shelby County, Arizona was no longer subjected to §5’s

intrusive preclearance regime. This is precisely the

point Judge Wake makes in his dissent. App. 122a-128a.

The Voting Rights Act was created to address an

“extraordinary problem.” Shelby County, 133 S.Ct. at

2618; see also McCain v. Lybrand, 465 U.S. 236, 244 (1984)

(“The ‘preclearance’ requirement mandated by §5 of the

Act is perhaps the most stringent of these remedies, and

certainly the most extraordinary.”); United States v. Bd.

of Comm'rs of Sheffield, Ala., 435 U.S. 110, 141 (1977)

(“This so-called ‘preclearance’ requirement is one of the

most extraordinary remedial provisions in an Act known

for its broad remedies.”) (Powell, J., concurring).

Section 5’s preclearance requirement was “a drastic

departure from basic principles of federalism,” and

the now-unconstitutional §4 was an “equally dramatic

departure from the principle that all States enjoy equal

sovereignty.” Shelby County, 133 S.Ct. at 2618. These

legislative remedies were implemented under “exceptional!

conditions” equal to the “entrenched racial discrimination”

the Voting Rights Act was designed to combat. /d.

(quoting South Carolina v. Katzenbach, 383 U.S. 301, 309

(1966)). Thus, the Voting Rights Act’s “departures” from

federalism and state sovereignty were “justified” only

when necessary to break down invidious racial barriers

to minority voting. /d. at 2625.

Sections 4 and 5 are inextricably intertwined. Section

4’s formula was “the means of linking the exercise of the

unprecedented authority with the problem that warranted

it.” Id.; see also Bd. of Comm’rs, 435 U.S. at 141 (Powell,

-

J., concurring) (“Section 5 provides that whenever a State

or political subdivision, designated pursuant to §4, seeks

to change a voting practice, it must obtain clearance for

that change from either the United States District Court

for the District of Columbia or the Attorney Genera] of

the United States.”).

It is, thus, richly ironic the IRC invokes concepts

of state sovereignty and federalism in defense of its

unequal reapportionment scheme. Arizona suborning its

internal redistricting process to §5 of the Voting Rights

Act is inimical to federalism concerns. As the decisions

of this Court note, §5 of the Voting Rights Act infringes

the sovereignty of those states to which it applies. Such

an intrusion can only be countenanced on the basis of

invidious discrimination of the type once identified by §4’s

coverage formula. Because present conditions no longer

justify such an intrusion, the district court was wrong to

uphold the IRC’s unequal reapportionment on this basis.

As noted in our opening brief, the IRC manipulated

the population in districts 8, 24, and 26 for the supposed

purpose of obtaining §5 preclearance. But unequally

populating these districts was not “reasonably necessary”

to comply with §5 “under a constitutional reading and

application” of the Voting Rights Act. Jurisdictional

Statement, pp. 31-41. Even if done to comply with how

the IRC thought the Justice Department would apply the

Voting Rights Act, the reapportionment “still must ‘consist

with the letter and spirit of the constitution.” Miller, 515

U.S. at 927 (quoting Katzenbach, 383 U.S. at 326).

Here, the number of citizen voting-age Hispanics in

districts 8, 24, and 26 were such that the IRC’s claim that

8

these districts were so-called ability-to-elect districts is

simply not credible. See Jurisdictional Statement, pp. 35-

36. Nothing in the record supports the IRC’s contention

that systematic population disparities were “reasonably

necessary” to achieve $5 preclearance.

The IRC claims it would have been “forced to choose

between compromising its other goals or risking non-

compliance with federal law, all in service of avoiding

‘insignificant population variations.” Mot. to Affirm, p. 30

(quoting Gaffney v. Cummings, 412 U.S. 735, 748 (1973)).

This is a false choice. The IRC had alternative

districting plans that avoided any retrogression and

did so with equally (or very close to equally) populated

districts. These alternative plans also satisfied traditional

race-neutral redistricting criteria such as respecting

established geographic boundaries.

II. The unequal districts were not the result of

traditional, race-neutral districting criteria.

We agree the Equal Protection Clause affords some

degree of minor deviation from strict mathematical

equality when necessary to accommodate traditional

race-neutral redistricting criteria. States may draw

districts with minor population disparities so long as those

districts will not “deprive any person of fair and effective

representation in his state legislature.” Gaffney, 412 U.S.

at 749.

But that is not what happened here.

This Court described the following “unchallenged

premise” in redistricting cases: “[PJopulation variances

9

in legislative districts are tolerated only if they ‘are

unavoidable despite a good-faith effort to achieve absolute

equality, or for which justification is shown.” Perry, 548

U.S. at 421.‘ This Court’s jurisprudence has been quite

clear: When using racial and ethnic criteria to draw

legislative districts, the state cannot violate traditional

race-neutral redistricting criteria without triggering

strict scrutiny.

Justice O’Connor explained:

[S]o long as they do not subordinate traditional

districting criteria to the use of race for its own

sake or as a proxy, States may intentionally

create majority minority districts, and may

otherwise take race into consideration without

coming under strict scrutiny.

Bush v. Vera, 517 U.S. 952, 993 (1996)

(O’Connor, J., concurring) (emphasis added).

The IRC-drawn districts were not unequally drawn

to accommodate traditional redistricting criteria such as

compactness and geographic boundaries. Rather, these

unequa! districts were the intended result of a desire to

achieve a race-based, partisan outcome.

4. Citing Karcher v. Daggett, 462 U.S. 725, 730 (1983)

(quoting Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969)).

10

Ill. The Equal Protection Clause prohibits deviations

from population equality to accomplish an

illegitimate objective.

The district court offered only two justifications for

the IRC’s unequal districts: partisan advantage and a

perceived need to gain Justice Department preclearance.

We show above (and in the Jurisdictional Statement)

that it was not necessary, as a matter of fact or law, to

have unequal districts to obtain Justice Department

preclearance. This is so even if preclearance under §5 was

still a valid consideration after Shelby County.

We are left with the IRC’s desire to achieve partisan

advantage as the only remaining justification explaining

why it unequally apportioned Arizona’s legislative

districts. The district court correctly assumed partisan

advantage was not a legitimate objective. App. 6a, 62a,

63a n.10, 79a.

We recognize

In Davis v. Bandemer, the Court held that

an equal protection challenge to a political

gerrymander presents a justiciable case or

controversy, but there was disagreement over

what substantive standard to apply. That

disagreement persists. A plurality of the Court

in Vieth® would have held such challenges to be

nonjusticiable political questions, but a majority

declined to do so.

Perry, 548 U.S. at 413-14

(citations omitted).

5. Vieth v. Jubelirer, 541 U.S. 267, 306 (2004).

11

In Perry, this Court continued, holding, “[w]Je do not

revisit the justiciability holding but do proceed to examine

whether appellants’ claims offer the Court a manageable,

reliable measure of fairness for determining whether a

partisan gerrymander violates the Constitution.” /d. at

414.

The IRC claims this case is like Vieth. The IRC is

wrong. There are significant differences between this case

and cases like Vieth in which this Court has suggested a

healthy skepticism for leaping into the “political thicket.”

First, after Shelby County, partisan advantage is

the IRC’s only possible justification for adopting unequal

legislative districts. The district court did not find that any

traditional districting considerations—such as geographic

boundaries and compactness—required the IRC’s unequal

districts.

Second, the IRC intentionally drew unequal districts

with a population deviation of close to 9%. This is not

like Vieth, involving a challenge to districts with zero-

population deviation. Thus, in Vieth, voters went to

the polling booths with equally weighted votes. That did

not happen in Arizona, where the IRC’s redistricting

scheme allows voters in Hispanic-plurality districts to

wield significantly more political influence than those in

non-Hispanic-White-plurality districts. The IRC could

have—even while seeking partisan objectives—drawn

equally-populated districts. After all, the IRC drew

Arizona’s congressional districts with zero-population

deviation.

This case does not present the question of whether

partisan gerrymandered districts of equal population

12

are justiciable and constitutional. Rather, this case asks

whether it is constitutional to create wnequal districts for

the purpose of achieving a partisan advantage and not

to satisfy traditional, race-neutral districting objectives.

The Larios opinion, which this Court summarily

affirmed, noted the important difference between political

gerrymandering (when districts are otherwise equal) and

drawing unequal districts that violate the one-person,

one-vote. See Larios v. Cox, 300 F. Supp. 2d 1320, 1351-52

(N.D. Ga. 2004).

Individual Arizona voters who have been unequally

treated are bringing this challenge under the one-person,

one-vote principle and ask this Court to vindicate their

right to equal protection. This case is not a challenge by a

political party or group claiming the IRC’s redistricting

scheme makes it more difficult to elect representatives of

its choice in certain districts.

Finally, in Perry, Justice Kennedy noted the

Constitution “leaves with the States primary responsibility

for apportionment of their federal congressional...

districts.” 548 U.S. at 414 (quoting Growe v. Emison, 507

U.S. 25, 34 (1993)). But as the Arizona State Legislature

challenge demonstrates, Arizona’s legislative districts

were not drawn by the Arizona state legislature. They

were drawn by the IRC, a five-member commission

independent of the legislature. The constitutional

deference traditionally accorded a state legislature is not

applicable where (as here) the redistricting was not done

by the state legislature.

13

CONCLUSION

We ask this court to note jurisdiction, to reverse the

district court, and to remand this matter instructing

that Arizona’s state legislative districts be reapportioned

consistent with the one-person, one-vote standard.

Alternatively, we ask this Court to stay this appeal

pending its decision in Arizona State Legislature and, in

light of that decision, vacate the decision of the district

court and remand this case to the district court to

reconsider its decision in light of this Court’s decision in

Arizona State Legislature.

14

Respectfully submitted,

Mark F-. (Toor) HEARNE, II STEPHEN G. LARSON

Counsel of Record Rosert C. O'BRIEN

STEPHEN S. Davis Steven A. HASKINS

ARENT Fox LLP ARENT Fox LLP

1717 K Street, NW 555 West Fifth Street,

Washington, D.C. 20036 48th Floor

(202) 857-6000 Los Angeles, CA 90013

thor@arentfox.com (213) 629-7400

Davib J. CANTELME Ek. MARSHALL BRADEN

CANTELME & BRowN PLC BAKER HosTetTLeER LLP

3003 N. Central Avenue 1050 Connecticut Ave., N.W.

Suite 600 Suite 1100

Phoenix, AZ 85012 Washington, D.C. 20036

(602) 200-0104 (202) 861-1500

MicHacw T. Lipurpi JASON TORCHINSKY

SNELL & WILMER LLP SHAWN SHEEHY

One Arizona Center HoirzMan VocEL JoseriAk PLLC

400 E. Van Buren Street 45 North Hill Drive, Suite 100

Phoenix, Arizona 85004 Warrenton, VA 20186

(602) 382-6000 (540) 341-8808

Counsel of Appellants